A serving German prisoner was repeatedly stripped searched for non-legitimate purposes. The European Court of Human Rights (ECHR) found that Germany had violated the Applicants’ rights as provided in Arts 3 – prohibition of torture, and Arts 13 – the right to an effective remedy, under the European Convention of Human Rights, and thus was entitled to non-pecuniary damages.
Background
Peter Roth, aged 60, was serving a life sentence in Straubing Prison, in Bavaria, Germany. Peter brought several sets of proceedings in the German criminal Courts regarding the execution of sentences, requesting that several strip searches he had been obliged to undergo in Straubing Prison, had to be declared unlawful. The search had been carried out pursuant to an Order issued by the prison authorities as provided for in section 91(2) of the Bavarian Execution of Sentences Act.
In an earlier case, heard by the Federal Constitutional Court of Germany in November 2016, regarding the aforementioned provision, the Court concluded that although the strip searches under the section involved inspection of the body orifices that were usually covered, constituted a serious interference with the personality rights of an individual, the searches in question, struck a fair balance between the detainee’s personality rights and the prison’s security interests. Hence, the provision was not unconstitutional.
In December 2016, the Nuremberg Court of Appeal, regarding Peter’s application declared that the random strip searches conducted to a prison visit by a records clerk of the Straubing District Court in August 2015 had been unlawful. In February 2017, Peter applied to the Regensburg Regional Court for legal aid in order to bring official liability proceeding under Art 839 (grants compensation to any citizen who had suffered damages as a result of a civil servant’s violation of official duties) of the Civil Code read in conjunction with Art 34 (liability for violation of official duty) of the Basic Law (the Grundgesetz). In September 2017, the Regensburg Regional Court declared that strip searches conducted on the 23rd of January 2014, the 11th of February 2014, the 29th of September 2014, the 13th of October 2014, 24th August of 2015, and 11th of February 2016, were illegal.
Peter stated that during these searches, he had been obliged to undress completely. He was then searched under the armpits and in the mouth and had to be bent down for an inspection of his anus. The searches had been ordered on a random basis in respect of one in five prisoners, without any exceptions being made. No security reasons for such searches had been demonstrated in his case. The searches had been carried out prior to his receiving visits from clerks of the district court registry who had come to take a record of the remedies of which he wished to avail himself before the court. He mentioned that his intention was to claim compensation of €1,000 (EUR) per illegal strip search.
Nuremberg Court of Appeal and the Federal Constitutional Court
On the 17th of May 2017, the Nuremberg Court of Appeal dismissed an appeal lodged by the applicant. It confirmed that the applicant’s intended official liability action had insufficient prospects of success. Having regard to all the circumstances of the case, it found that it was not necessary to award the applicant (Peter) monetary compensation for the breach of his personality rights.
On the 19th of June 2017, the applicant lodged a constitutional complaint with the Federal Constitutional Court against the decisions of the Regional Court and the Court of Appeal refusing to grant him legal aid. He reasoned, in particular, that the impugned decisions had breached his personal rights and his rights to court proceedings. Given the gravity of the interference with his personality rights on account of the strip searches, he should be granted monetary compensation for the non-pecuniary damages suffered. On the 23rd of January 2018, the Federal Constitutional Court, without giving reasons, declined to consider Peter’s constitutional complaint.
The European Court of Human Rights
Peter brought proceedings against Germany in the European Court of Human Rights (ECtHR) for violations of Arts 3 (prohibition of torture) and Arts 13 (right to an effective remedy). The Court held that the searches had not established a connection with the preservation of prison security or the prevention of crime. Moreover, the manner in which these repeated searches had been carried out had not entailed any other elements; hence, only unnecessarily debasing or humiliating the applicant.
However, owing to the absence of a legitimate purpose for these searches, the feeling of arbitrariness and the feelings of inferiority and anxiety often associated with them, as well as the feeling of a serious affront to dignity indisputably prompted by the obligation to undress in front of another person and subsequently submit to inspection of the anus, had resulted in a degree of humiliation exceeding the unavoidable and hence tolerable level that strip-searches of prisoners inevitably involve. The searches had thus gone beyond the inevitable element of suffering or humiliation connected with a given form of legitimate treatment. They had therefore diminished the applicant’s human dignity and had amounted to degrading treatment; a violation of Art 3 of the European Convention of Human Rights.
Regarding Art 13, in the domestic court’s view, sufficient compensation for the interference with the applicant’s personality rights had been granted by means other than monetary compensation. Despite the fact that the domestic courts had themselves classified the strip-searches as a serious and unlawful interference with the applicant’s personality rights, they had considered it sufficient that the courts dealing with the execution of the sentences and the Federal Constitutional Court had previously found the applicant’s (or comparable) strip searches to have been unlawful. They had further taken into consideration that the fault on the part of the prison staff, who had ordered and carried out the searches had at most been minor and that there was, in the courts’ view, no risk of future random searches of the applicant.
The Court had previously found that in respect of the arguable claims of a breach of Art 3 notably by ill-treatment or poor conditions of detention, there was a strong presumption that they had caused non-pecuniary damage to the aggrieved person. Making the award of compensation for measures in breach of Art 3 conditional on the claimant’s ability to prove fault on the part of the authorities and unlawfulness of their actions may as such render existing remedies ineffective. The applicant’s official liability proceedings had been found to have no prospects of success even though the measures against him had, at least potentially, been at fault on the part of the authorities.
Finally, it could not be concluded that the breach of Art 3 was of such a minor nature that compensation would have been exceptionally unnecessary. It could not be derived from the Court’s case-law that the fact that the National authorities had not been aware of having violated the Convention, or that the applicant would probably not be subjected against such treatment in breach of his fundamental rights, constituted decisive grounds for not awarding compensation in respect of the non-pecuniary damage suffered as a result of a breach of a Convention right. There had therefore been no effective remedy before a national authority to deal with the substance of the applicant’s complaint under Art 3. Consequently, the Court found a violation of Art 13 of the European Convention of Human Rights, and under Art 41, of the Convention, the Court awarded €12,000 (EUR) in respect of non-pecuniary damages.
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